Death Penalty: Should it be allowed to remain?
The answer is not simple despite an array of arguments by a well informed/organised lobby composed of poltical and social activists and legal luminaries alike of higher order,often of national repute. This lobby working overtime for the liquidation of death penalty firmly believes, perhaps not without valid reasons, that taking away life as a measure of punishment is ipso facto error ridden. The abolitionists say that State's taking away of life as a measure of punishment is materially not very different from that having been taken away by the convict. Both take away the life in their own ways. Whereas the one(criminal-convict) takes away life out of fit of rage or conspiracy the other(State) divests an accused of his life in a cold blooded way by a blood thirsty judges in the name of delivery of justice. Should the right to life having been taken away by the State be the rational outcome of a prolonged trial? We should be mindful of the fact that this trial is conducted by a presiding officer with the assistance of prosecution and defence working in opposite directions on the result of investigation. Is the presiding officer in the position to take guarantee that that the circuitous route of delivery of capital punishment was not waylaid in anyway by anyone whatsoever? Can it be said that rational outcome of any trial could also be a punishment nothing short of death penalty ? Are the conscience of those awarding death penalty clear enough to pronounce an order that takes away the life of a person who is also a living being like him(judge) but for a situation that turned him(convict) a criminal! Were the attendant circumstances accompanying the commission of crime duly considered? What about the tribulations associated with the trial that is spread over years and during which the undertrial/convict dies daily to find himself on the butt of ignominy and scaffold of impending execution? What is left to eke out a living for the rest of the family whose Head is beheaded as a measure of punishment? Is the life a creation of the State that She is entitled to take it away?The victim of death penalty as anyone can find belongs to that stratum that does not understand the nuances of judicial discourse and its devious ways which the resourceful tread with ease.
Notwithstanding that these questions cannot be satisfactorily answered to the satisfaction of all the above arguments in the quiver of the abolitionists is not sufficient enough to reach a conclusion that the Capital Punishment be done away with. It only suggests that delivery of justice in terms of death penalty should be meted out with utmost care given also the State's requirements of discharging its responsibility towards the law abiding citizens, innocent and victims alike. Life, the status quoists maintain, can only be protected if those who take it away are proportionately punished. Here what is the meaning of 'proportionately punished'? Does it amount to taking away the vital life itself? The answer may be given in the affirmative in view of the examples that are many in the form of terrorist or Maoist attacks, a gas tragedy of the sort of Bhopal taking a number of lives in one stroke and instalments, brutal rapes, gangrape or rape with minor etc. to quote a few. These heinous acts or omissions are not only a crime against Society but Humanity also.Can it be said without compunction that the State should award punishment short of death penalty even when the scope and intensity of the aftermath of such commission is devastating enough to cause huge injustice to those who survived such heinous commission of crime? It is in this context amendments should be viewed with respect to Indian Penal Code adding death penalty for certain categories of rapes and repeat offenders.This year India introduced the death penalty for those who rape minors. It is still the well considered view of the Supreme Court that death penalty as a punishment is worthy of being retained for reasons more than one. However the Apex Court has cautioned that death penalty be awarded in Rarest of rare cases only. In 1980, in Bechan Singh vs. State of Punjab, a Constitution Bench articulated the "Rarest of rare" threshold stating that "judges should never be bloodthirsty". Besides, when all said and done judicially we have also the provision in our Constitution regarding mercy petition before the President of India. All aberration in justice stands the chance of correction through such mercy petition for clemency or commutation etc.
Thus howsoever the arguments in favour of abolition may appear to be forceful it will be in fitness of things not to ape such countries as have deleted death penalty from their List of Criminal Punishments. Of course, it must be meted out in the most sparring way and that too only after rigorous considerations otherwise it will remain at worst a judicial killing where a killer is killed judicially!
Notwithstanding that these questions cannot be satisfactorily answered to the satisfaction of all the above arguments in the quiver of the abolitionists is not sufficient enough to reach a conclusion that the Capital Punishment be done away with. It only suggests that delivery of justice in terms of death penalty should be meted out with utmost care given also the State's requirements of discharging its responsibility towards the law abiding citizens, innocent and victims alike. Life, the status quoists maintain, can only be protected if those who take it away are proportionately punished. Here what is the meaning of 'proportionately punished'? Does it amount to taking away the vital life itself? The answer may be given in the affirmative in view of the examples that are many in the form of terrorist or Maoist attacks, a gas tragedy of the sort of Bhopal taking a number of lives in one stroke and instalments, brutal rapes, gangrape or rape with minor etc. to quote a few. These heinous acts or omissions are not only a crime against Society but Humanity also.Can it be said without compunction that the State should award punishment short of death penalty even when the scope and intensity of the aftermath of such commission is devastating enough to cause huge injustice to those who survived such heinous commission of crime? It is in this context amendments should be viewed with respect to Indian Penal Code adding death penalty for certain categories of rapes and repeat offenders.This year India introduced the death penalty for those who rape minors. It is still the well considered view of the Supreme Court that death penalty as a punishment is worthy of being retained for reasons more than one. However the Apex Court has cautioned that death penalty be awarded in Rarest of rare cases only. In 1980, in Bechan Singh vs. State of Punjab, a Constitution Bench articulated the "Rarest of rare" threshold stating that "judges should never be bloodthirsty". Besides, when all said and done judicially we have also the provision in our Constitution regarding mercy petition before the President of India. All aberration in justice stands the chance of correction through such mercy petition for clemency or commutation etc.
Thus howsoever the arguments in favour of abolition may appear to be forceful it will be in fitness of things not to ape such countries as have deleted death penalty from their List of Criminal Punishments. Of course, it must be meted out in the most sparring way and that too only after rigorous considerations otherwise it will remain at worst a judicial killing where a killer is killed judicially!
R.R.Prabhakar.
14.12.2018.
14.12.2018.
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